Damages and Judicial Review

Hello Andean Kingdom of Swain in Khost. Listers head off the prison or public law and criminal department Today. I'm going to be talking to you about when precisely it is possible or appropriate to attach claims for damages or restitution onto public law. Judicial Review Cases against the start By setting announce the statutory principles, move on to case law on bringing us all together. I'm going to start by talking to about Section 31 subsection four of the Senior Courts Act 1981 which defines the circumstances in which the court may award damages, restitution or the recovery of a some do on a claim for judicial review. Section 31 4 states on an application for judicial review, the High Court may award to the applicant damages restitution or the recovery of a some Jew if I. The application includes a claim for such a world arising from any matters to which the application relates and be. The court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application. When one fuse that in collaboration with the civil procedure rules 54.3 brackets to says a claim for judicial review may include a claim for damages, restitution or the recovery of a some do but may not seek such a remedy alone. Such a claim kind, of course, be included in addition to a claim for one of the prerogative remedies or a declaration or injunction. But a claimant cannot, of course, seek damages or restitution alone in a claim for judicial review. In the case of our Quart Fishing Limited versus the secretary of state for Foreign and Commonwealth affairs, Baroness House, the shed them was in 6 2001 a C 5 to 9, said, Our law does not recognize a right to claim damages for losses caused by unlawful administrative action. Although compensation may sometimes be available to the victims of maladministration, there has to be a distinct cause of action in tort or under the Human Rights Act 1998. Of course, judicial review does not create any new right or remedy in damages. It's simply provides that if a claim for damages or restitution exists in private law, it may in appropriate cases be claimed in the judicial review procedure alongside the claim for prerogative or other remedy to vindicates a public law rights. When one thinks about the type of cases where damages would be available, what would you think? Taking into account all the types of challenges one regularly sees in the high court, it's perhaps no surprise that unlawful detention cases is where we see this the most in the case of our number versus the secretary of state for the Home Department, 2012 1 a. C. 245 The Supreme Court confirmed that the principles which apply it to the exercise of the Home Secretary statutory power to detain F M. P's for a national prisoners were subject to the hartal. Singh principles one that the powers should only be used for the purpose of detaining a person whom the Home Secretary intends to deport to that attention should only before a period for which is reasonable in the circumstances free that if before the expiry off the reasonable period it become a parents, that deportation could not be affected within a reason of pick reasonable period. The Home Secretary should not seek to exercise the power of detention and fourthly, finally, that the home secretary should act with reasonable diligence and expedition to affect the deportation. Now in practice, damages claims made in judicial review claims will be transferred to the Queen's bench division in order to be hurt. UH, in ah Kurdistan Workers Party versus Sector Estate for Home Department 2002 E W H. C. 644 admin 87 the court said where there was a claim for damages as part of a appropriate claim for judicial review. The claim for damages would normally be left over to be dealt with at a discreet issue if still relevant after the main issues of public Lord being determined even if still still dealt with under the civil procedural part 54 Marvin and transferred out of the admin quality would still generally be subject directions, bringing it broadly into line with a damages claim commenced in the normal way. Now, when one looks at the scope for claiming damages in judicial review proceedings, one has obviously the young lawful detention or unlawful search warrant damages claims for a tortuous claim damages, of course, under the Human Rights Act, Andi you damages under Frank Prince damages claims are not in themselves a good reason for permitting judicial review proceedings to continue. Now, when we look at problem areas there, of course, a few problem areas in in this area one of those is for abuse of process claims. There's a general room that in public law claims that they can only be brought by way of judicial review. This principle dates back to 1980 free in the case of a Riley Verses McElman to a c 237 And that was a prisoner's case whereby it was alleged that the Board of Visitors for a number of prisoners had breached the rules of natural justice and declarations were sort that those decisions were and no ality by proceedings brought his writs actions or, in some instances, by originating summons. The prison authorities applied to strike out these proceedings as an abuse of process. On the court of Appeal, eso not the Court of Appeal of the House of Lords unanimously held that the proceedings should be struck out as Lord Dip. Locke said it would, in his view as a general, will be contrary to public policy and as such, an abuse of process of the court to permit a person seeking to establish that a decision of a public authority infringed rights to which is entitled to protection on the public law to proceed by way of an ordinary action on by this means to evade the provisions of the particular order for the protection of such authorities. However, the courts have become more flexible in their approach to this principle. One such example is in the case of Mercury Communications, the director general of telecommunications. 1996 1 W. L. R. 48 57 where the court said that in order to retain some flexibility is the precise limits of what is called public law on what is called private law are by no means worked out. Taking this further in the case of Richards vs Worcester Sheer County Council 2016 E. W. H. C. 1954 this related to section 117 within the context of mental health and after care. Yeah, the local authority effectively argued that it was not possible to bring a private law claim arising from the failure to carry out duties under Section 117 However, the court held. It was arguable that the local authority have been enriched at the claimants expense and that absolute defendants, um, to show that they had not succeeded in establishing that the claim. It could not have a restitution, every claim in that case effectively. What happened was that the individual paid privately for care, which he says in accordance with 117 should have been provided free of charge. The court effectively rejected the local authorities abusive process argument, and they rejected the contention that claim for restitution for breach of public law duty had to proceed by judicial review. The courts observed that although restitution could be claims within judicial review applications, such an application could not before restitution alone on the claim and only saw restitution rather than any other relief. The court also expressed doubts to ever private law claim for restitution should be subject to the strict time limits that were applicable in judicial review applications. The Courts of Appeal has granted permission to repeal on the court. He's due to hear this case at the end of 27 ST in accordance with the Human Rights Act. That has been a number of developments on one of those key cases is the case of our sternum versus the secretary of state for justice, 2013 to a C 254 this prisoner case and there was a number of criteria set out in damage. I don't propose to go into these in detail. Would ask that you look at the judgment of Lord Reid, who sets it out incredibly clear in bringing this webinar together. It is quite clear that you are able to argue for damages in judicial review cases. Hopefully this as provided food for Fort in thinking about when it's best to argue damages in appropriate cases. Of course, as in any area of law always tries to think flexibly and how you can best attach damages claims to judicial review cases.